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2018 DIGILAW 1030 (JHR)

Amar Nath Thakur v. Subodh Nath Thakur

2018-05-09

RAJESH KUMAR

body2018
ORDER : Heard learned counsel for the appellants as well as respondents. 2. The present appeal has been preferred against the order dated 30.07.2016 passed by the learned District Judge-I, Deoghar in Civil Appeal No. 18 of 2003 whereby the learned Appellate Court has set aside the judgment and decree dated 02.05.1987 and 10.08.1987 respectively in Title Suit No. 39 of 1977 and remanded the suit after deciding issue of Respondent-judicata. 3. The plaintiffs-respondents have filed the suit for partition being Title Suit No. 39 of 1977 of the suit properties fully described in the schedule of the plaint and for declaration that the judgment and decree in Title Suit No. 148 of 1963 and Title Suit No. 107 of 1965 of the Court of Subordinate Judge, Deoghar are void, illegal, inoperative, fraudulent and not binding on the plaintiff. 4. The fact as disclosed by the plaintiffs in the suit was that the plaintiff and defendants are the members of the joint Hindu family governed by the Mitakshra School of Hindu Law. It was also stated that the properties described in schedule of the plaint are the joint family properties and no partition of the properties have been taken place till date. All the family members are jointly enjoying and possessing the property and they are coparceners till date. 5. It has been further alleged that original defendant no. 1 wanted to dispose of the properties and accordingly, dispute has arisen and the present suit has been filed. It has been further stated that written statement filed in Title (P) Suit No. 148 of 1963 by the original defendant no. 1 and the Second Title Suit No. 107 of 1965 filed by the grand-mother of the plaintiff as alleged that the judgment and decree has been obtained by playing fraud and fraudulent, clandestine manner upon the plaintiff and the court. Therefore, the same is not binding on the plaintiff as neither he was party in those proceedings nor he has any knowledge regarding the same. 6. All defendants have appeared and filed their written statement. In written statement, defence has been taken that the suit is barred by resjudicata as issue has already been settled in Title (P) Suit No. 148 of 1963 in which final decree was passed on 16.06.1975 on the basis of compromise petition dated 27.04.1968 filed by the parties. 6. All defendants have appeared and filed their written statement. In written statement, defence has been taken that the suit is barred by resjudicata as issue has already been settled in Title (P) Suit No. 148 of 1963 in which final decree was passed on 16.06.1975 on the basis of compromise petition dated 27.04.1968 filed by the parties. Plaintiff is not in possession of the suit property. 7. It has been further stated that the some properties were allotted as share of the plaintiff’s father and uncle in Title (P) Suit No. 148 of 1963. 8. The Trial Court has framed eight issues, which are as follows:- (i) Is the suit as framed maintainable ? (ii) Has the plaintiff got valid cause of action for the suit ? (iii) Is the suit barred by law of limitation ? (iv) Is the suit barred by principle of resjudicata ? (v) Is their unity of title and possession of the parties over the suit property ? (vi) Is the decree passed in Title Suit No. 149/1963 and 107/1965 fradulent, nullity and inoperative and not binding on the plaintiff? (vii) Is the property standing in the name of defendant Prabhawati Devi liable for partition ? (viii) To what relief or reliefs if any the plaintiff is entitled ?” 9. The Trial Court after taking evidence and hearing the parties has returned the findings on all the issues against the plaintiff and accordingly the suit has been dismissed vide judgment and decree dated 02.05.1987 and 10.08.1987 respectively. 10. Being aggrieved the plaintiff/respondent herein has preferred the appeal before the Appellate Court being Civil Appeal No. 18 of 2003. 11. The Appellate Court has framed three points for consideration, which are as follows:- (I) Whether the judgment and decree passed in the earlier suit No. 148/1963 was a compromise decree? (II) Whether fraud was practiced by the Gouri Nath Thakur in the earlier suit in obtaining the judgment and decree? (III) Whether the principle of res judicata is applicable against the plaintiff/appellant and is thus barred from filing afresh suit?” 12. From bare perusal of the points framed for consideration by the Appellate Court, it is evident that the Appellate Court has gone to the preliminary issue regarding maintainability of the suit itself. (III) Whether the principle of res judicata is applicable against the plaintiff/appellant and is thus barred from filing afresh suit?” 12. From bare perusal of the points framed for consideration by the Appellate Court, it is evident that the Appellate Court has gone to the preliminary issue regarding maintainability of the suit itself. The Appellate Court has decided all three points in favour of the appellants/plaintiffs by reversing the findings recorded by the Trial Court on the two issues i.e. issue nos. 4 and 6 and thus holding therein that the suit is not hit by principal of resjudicata. The judgment and decree passed in earlier suit being Title (P) Suit No. 148 of 1963 was act of fraud and as such, it cannot operate as resjudicata. 13. The Appellate Court, after reversing the decree passed by the Trial Court and deciding the preliminary issues of resjudicata in favour of the plaintiffs/ appellants has remanded the suit for trial afresh with further direction that two issues i.e. issue nos. 4 and 6(which have already quoted hereinabove) have already been decided and set aside by the Appellate Court and for rest of the issues, the Trial Court is required to proceed afresh. 14. This order of remand by the First Appellate Court has been challenged by the defendants/appellants herein in the present appeal. So far as jurisdiction of Trial Court and Appellate court are concerned. Order XIV Rule 2 of the Code of Civil Procedure is quoted hereinunder: “[2. Court to pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.].” 15. Order XIV Rule 2 of the code of Civil Procedure cast duty upon the Court to pronounce the judgment on all the issues. But there is an exception to general Rule i.e. where issues both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issue of law only, it may try that issue first if that issue relates to the jurisdiction of the court or a bar to the suit created by any law. 16. Order 14 Rule 2 of the Code of Civil Procedure as it existed earlier reads as under: “2. Issues of law and of fact.- Where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.” 17. A Comparative reading of the said provision as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. In the unamended Code, the categorisation was only between issues of law and of fact and it was mandatory for the court to try the issues of law in the first instance and to postpone the settlement of issues of fact until after the issues of law had been determined. On the other hand, in the amended provision there is a mandate to the court that notwithstanding that a case may disposed of on a preliminary issue, the court has to pronounce judgment on all the issues. The only exception to this is contained in sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring discretion upon the court that if the court is of opinion that the case or any part thereof may be disposed of “on an issue of law only”, it may try that issue first. The only exception to this is contained in sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring discretion upon the court that if the court is of opinion that the case or any part thereof may be disposed of “on an issue of law only”, it may try that issue first. The exercise of this discretion is further limited to the contingency that the issue to be so tried must relate to the jurisdiction of the court or a bar to the suit created by a law in force. 18. Thus, Civil Procedure Code has been amended for the purpose to shorten the period of litigation. However, all the issues are required to be decided by the Appellate Court, even if the Appellate Court reverse the findings on the preliminary issue, the Appellate Court has to consider all the evidences and issues before him to decide the litigation finally. 19. In the present case, the Appellate Court has remanded the suit under Order XLI Rule 23-A of the Code of Civil Procedure. Order XLI Rule 23, 23-A, 24 and 25 of the Code of Civil Procedure are quoted hereiunder:- “23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence(if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. [23-A. Remand in other cases-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23] 24. [23-A. Remand in other cases-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23] 24. Where evidence on record sufficient, Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time].” 20. From conjoint reading of Order XLI Rule 23 of the Code of Civil Procedure and Order XIV Rule 2 of the Code of Civil Procedure, it create a situation that when the Trial Court decide the suit on preliminary issue against the plaintiffs and if the plaintiffs prefer an appeal and the Appellate Court reverse the decree by returning the findings on preliminary issue in favour of the plaintiff/appellant, in that case, First Appellate Court has no other option, but to remand the entire suit to the trial court as the suit has not been decided on merit and no evidence has been taken for deciding whole suit. Order XLI Rule 23 of the Code of Civil Procedure and Order XIV Rule 2 of the Code of Civil Procedure do not contemplate the situation whether the Appellate Court can decide the entire appeal on the basis of the preliminary issue. Such a situation has not been contemplated under the Code of Civil Procedure. The Appellate Court is mandated to decide the appeal on merit touching all the required issues/points. Order XLI Rule 23 of the Code of Civil Procedure under which the present impugned order could have been passed laid down the criteria for remand on two grounds i.e. the Decree is reversed in appeal or re trial is necessary. Further Order XLI Rule 24 and 25 of the Code of Civil Procedure guides the Appellate Court to decide the matter finally if evidences are sufficient. If any issues have to be framed, in that case, only issues should be remanded for trial. If any further evidence is required then for that purpose only the Trial Court after resettling the issue or taking evidence should submit the same to the Appellate Court, who supposed to decide the appeal on merit. 21. In the present case, the Appellate Court has not returned the findings that Re-trial is necessary, in fact not even recorded any findings that evidences are not sufficient and also no new issue has been framed by the Appellate Court. The Trial Court has decided all the issues on merits, after taking the evidence, as such, the Appellate Court ought to have been decided the appeal on merit. 22. It appears that the Appellate Court after taking into consideration Order XLI Rule 23 of the Code of Civil Procedure, by deciding the appeal on two issues i. e. issue nos. 4 and 6, remanded the matter to the Trial Court, which is in fact not applicable in the present set of facts. The Appellate Court has adopted new procedure which is unknown to the Code of Civil Procedure Code. 23. In view of the above discussion, this Court finds that the First Appellate Court has travelled beyond its jurisdiction in remanding the matter to the Trial Court. Accordingly, the order dated 30.07.2016 passed by the learned District Judge-I, Deoghar in Civil Appeal No. 18 of 2003 is hereby set aside. 24. With the aforesaid observations and directions, this appeal is allowed.